Lawyers for Britain's intervention in the Supreme
Court

On 3rd November 2016 the Divisional Court handed down its judgment in R (Miller) -v- Secretary of State for Exiting the
European Union
[2016] EWHC 2768 (Admin). The court, to the surprise of most
informed observers, decided that it is outside the prerogative powers
of the Crown for notice to be given under Article 50 of the Treaty on
European Union to withdraw from the European Union.

On 8 November 2016, the Supreme Court granted
permission to appeal to the government, and announced that the case
would be heard by the full Court of 11 Justices from 5 to 8 December
2016.

Having reviewed the Judgment of the Divisional Court and the arguments
presented by the parties, Lawyers for Britain decided to apply to
the Supreme Court for permission to intervene in the appeal as an
organisation seeking to make submissions in the public interest. Our
application for permission to intervene was granted by the Supreme
Court on 25 November 2016, and our full Lawyers for Britain Supreme Court Submissions were filed on 29 November 2016. On the morning of the last day of the hearing (Thursday 8 December) we also filed our Supplemental Submissions
which respond to some important points which emerged in the course of
oral argument in the Supreme Court, and on 22 December 2016 we filed a Further Supplemental Submission to rebut some contentions by other interveners.

We presented arguments which were additional to or
different from the arguments put forward by the government, but which
supported the conclusion that the appeal should be allowed. We thought
that it was important in the public and national interest that the
Supreme
Court should be
in a position properly to consider those arguments.

The summary of our arguments as set out on our Application to Intervene was as follows:-

"First, even if the European Communities Act 1972 did by implication
impose a restriction on the prerogative power of the Crown to withdraw
the UK from the Communities (if withdrawal was permissible under
international law, which was at the time doubtful, see Costa v ENEL
(Case 6/64) [1964] ECR 585, 594), the effect of the European Union
(Amendment) Act 2008 (“the 2008 Act”) was to negative any such
restriction on the exercise of the wholly new explicit power of
withdrawal from the EU under Article 50 of the Treaty on European
Union. The 2008 Act:

(1) inserted the Lisbon Treaty, and accordingly Article 50, into the
“Community [renamed EU] treaties” to which the ECA 1972 gave effect; and

(2) in section 6, imposed explicit Parliamentary control over the
exercise of the prerogative to invoke several powers introduced by the
Lisbon Treaty, including Article 48(6) TEU on simplified treaty
revision, but not over Article 50 on withdrawal.

Parliament must have been aware of the important new power in Article
50 and decided by contrast that its exercise should not be subject to
Parliamentary control. The European Union Act 2011 further elaborated
the system of Parliamentary control over prerogative acts and thereby
further confirmed Parliament’s intention not to fetter the prerogative
in the exercise of Article 50.

Secondly, and in any event, the effect of the European Union Referendum
Act 2015, read against the background of the ECA 1972 and the 2008 and
2011 Acts, was to negative any such restriction which might otherwise
have arisen, if the result of the referendum was a majority to leave
the European Union. As Lord Dyson MR recently held “the referendum (if
it supports a withdrawal) is an integral part of the process of
deciding to withdraw from the EU” in accordance with the UK’s
constitutional requirements as referred to in Article 50: Shindler v Duchy of Lancaster
[2016] EWCA Civ 469 at [19]."

In intervening in the appeal, we believe that we were seeking to
represent the
wider interests of all who participated in the Leave campaign and of
the 17.4 million people of this country who voted to leave the European
Union. The referendum was authorised by Parliament to give effect to a
clear and unequivocal pledge in the General Election manifesto of the
winning party that the people would decide (not merely advise
on) the question of our
membership of the EU. We believe that the outcome gave rise to a clear
and unambiguous constitutional mandate to implement the people's
decision to leave which must be respected by government and Parliament,
and reject the suggestion that the referendum was merely "advisory".

We extend our thanks to all who have contributed an immense amount of
their time and legal
expertise to our efforts, as well as to everyone who has given a
donation, which have allowed us to undertake this important
initiative.
Our donations have come from a large number of individuals and have
ranged from £10 up to much larger sums.

As we explain in our comment on the Judgment, it seems clear that our submissions played an important role in the thinking of the Court.